Archive | September, 2013

by Greg Torode | Reuters - The Philippines’ legal challenge againstChina‘s claims in the South China Sea is gathering pace, emerging as a “proxy battle” over Beijing’s territorial reach.

Manila has assembled a crack international legal team to fight its unprecedented arbitration case under the United Nations’ Convention on the Law of the Sea – ignoring growing pressure from Beijing to scrap the action.

China’s claims and EEZ under UNCLOS. Source: China Daily Mail

Any result will be unenforceable, legal experts say, but will carry considerable moral and political weight.

The Philippines has invested a “huge amount of political capital in this legal gambit and it wants to ensure success regardless of the cost,” said security scholar Ian Storey of Singapore’s Institute of South East Asian Studies.

“If the Philippine team submits a less than convincing case…this would be very embarrassing for Manila and put it right back to square one in its dispute with China.

“Beijing would also be emboldened to pursue its claims even more assertively than it has been doing over the past few years.”

Beyond the legal questions, the case carries political and diplomatic risks and is being closely watched by Japan and Vietnam, locked in their own disputes with China over sea territory, officials from both countries say.

The United States, which is deepening military ties with the Philippines, a longstanding treaty ally, is also watching.

The legal battle mirrors tensions at sea, where China and the Philippines eye each other over rival occupations of the Scarborough and Second Thomas shoals.

Chinese vessels occupied Scarborough after a tense two-month standoff between rival vessels last year – a move some regional analysts have described as an effective annexation by Beijing.

The Philippines accused China of further encroachment when a naval frigate and two other ships steamed within five nautical miles of a dilapidated transport ship that Manila ran aground on Second Thomas Shoal in 1999 to mark its territory.

One Asian envoy from a non-claimant country said: “We are watching and worrying about an accident or miscalculation sparking an armed confrontation. So in some ways this growing legal fight looks like the proxy battle, you could say.”

Overlapping claims in the South China Sea – traversed by half the world’s shipping tonnage – are one of the region’s biggest flashpoints amid China’s military build-up and the U.S. strategic “pivot” back to Asia.

The claims of the Philippines, Vietnam, Malaysia and Brunei are bisected by China’s “nine-dash line” – the historic claim that reaches deep into the maritime heart of Southeast Asia.

European states, Russia, India and South Korea are also monitoring events, given the sea’s shipping lanes and potential oil and gas resources, diplomats and military officials say.

MANILA’S FRUSTRATIONS

Frustrated by slow progress by the Association of South East Asian Nations in easing tensions and fearing its sovereignty was threatened, Philippines officials said they had no alternative.

Unable to contest actual sovereignty in international courts without China’s consent, Manila instead launched its arbitration in January – despite formal objections from Beijing.

Philippines Foreign Ministry spokesman Raul Hernandez told Reuters this week that Manila remained positive that the action would clarify the claims and entitlements of claimants to “benefit the region and the international community as a whole”.

Manila’s team is preparing arguments to show that the nine-dash line claim is invalid under of the Law of the Sea. They are also seeking clarifications of the territorial limits, under the law, of rocks and shoals such as Scarborough – all part of a bid to confirm the Philippines’ rights within its 200-nautical-mile exclusive economic zone.

Philippines’ lead counsel Paul Reichler, a Washington-based lawyer with Foley Hoag, told Reuters that his five-strong team included British law professors Philippe Sands and Alan Boyle as well as Bernard Oxman from the University of Miami’s law school.

Independent legal experts have described the team, managed by the Philippines’ Solicitor General Francis Jardeleza, as “formidable”, with deep experience of the arcane world of the Law of the Sea, a landmark document approved in the early 1980s.

CHINA’S ANGER

China has refused to participate, saying the case has “no legal grounds”, and is widely expected to reject any outcome its does not agree with.

Foreign Ministry spokesman Hong Lei said China views the move as a breach of a 2002 declaration between China and ASEAN.

“The Philippines has illegally occupied the reefs and islands in the South China Sea that belong to China…China has consistently advocated for resolution to the dispute at hand through bilateral dialogue,” he said.

Behind the scenes, Chinese diplomats are telling the Philippines’ ASEAN peers that the case has no merit, according to diplomats from the 10-nation grouping.

Philippines Foreign Ministry officials said Beijing demanded that Manila scrap the case as a condition for a long-planned trip by President Benigno Aquino to a regional trade show in southern China this month. Chinese officials said no invitation was ever offered. The trip never happened.

The Philippines’ effort, however, was recently given a boost by a decision from an arbitration panel created to hear the case under the U.N.’s International Tribunal of the Law of the Sea.

The five international judges said the Philippines had until March 30, 2014 to produce written arguments about the case’s admissibility and merits. China is a member of the tribunal but has forgone its right to select one of the judges to the panel.

Maritime scholar Clive Schofield said the request for the Philippines to provide arguments was potentially favourable. It also meant the case might take less than the three to four years anticipated by Manila when it was launched in January.

“It suggests that the Philippines will be able to present its arguments on the merits of the case as soon as the jurisdictional hurdle is overcome…If I was sitting the Philippines’ chair right now I would be happier than sitting in China’s,” said Schofield, a professor at the University of Wollongong inAustralia.

Schofield described the panel as “irreproachable. These guys are at the very top of their game and I expect it would be very unlikely they would be swayed by political issues.”

He said that it appeared the panel would not be hostile to China even though it was not contesting the arbitration.

Ultimately, the Philippines was anticipating a “good return” on its investment, said Storey, the Singapore-based expert. A favourable ruling would give Manila confidence in developing oil and gas reserves in disputed areas such as the Reed Bank.

“Foreign energy companies would also feel more comfortable about investing in areas…that lie within the Philippines’ exclusive economic zone,” he said.

(Additional reporting by Rosemarie Francisco in Manila and Megha Rajagopalan in Beijing. Editing by Ron Popeski)

Dung and his French counterpart Jean-Marc Ayrault Wednesday signed a joint statement on the strategic partnership, which seeks to enhance cooperation in politics and diplomacy, defense and security, economy, trade and investment, culture, education and training, scientific research, and law and justice.

They also witnessed the signing of a series of deals in banking, healthcare, oil and gas, aviation, and transport.

During talks before the signing, Dung reiterated Vietnam’s policy of attaching importance to its relations with France, adding the strategic partnership is not a destination but a new starting point.

Ayrault said France would help Vietnam in boosting ties with the EU, especially economic and trade ties.

On the East Sea, internationally known as the South China Sea, the French side supported Vietnam’s policy of settling disputes through peaceful means on the basis of international law, including the 1982 United Nations Convention on the Law of the Sea, and strictly implementing the Declaration on the Conduct of Parties in the East Sea, and quicklycreating a Code of Conduct in the East Sea.

Dung also met President Francois Hollande and the president of the Senate, Jean-Pierre Bel.

He received French Communist Party National Secretary Pierre Laurent and met with representatives of France’s leading companies.

by Manuel Mogato and Ben Blanchard | Reuters - The Philippines accused China on Tuesday of violating an informal code of conduct in the South China Sea by planning new structures on a disputed shoal, as China’s premier told Southeast Asian leaders Beijing was serious about peace.

Friction over the South China Sea, one of the world’s most important waterways, has surged as China uses its growing naval might to assert its vast claims over the oil- and gas-rich sea more forcefully, raising fears of a military clash.

Four of the 10 members of the Association of Southeast Asian Nations (ASEAN), including Vietnam and the Philippines, have overlapping claims with China.

China and the Philippines accuse each other of violating the Declaration of Conduct (DoC), a non-binding confidence-building agreement on maritime conduct signed by China and ASEAN in 2002.

Philippines Defense Secretary Voltaire Gazmin told a congressional budget hearing in Manila that China had violated the DoC by getting ready to build new structures on the disputed Scarborough Shoal.

“We have … sighted concrete blocks inside the shoal which are a prelude to construction,” Gazmin said, displaying air surveillance photos of the rocks.

He said the photos were taken on Saturday, describing them as a worrying pattern of constructionthat would be similar to the building of a garrison on Mischief Reef in the late 1990s.

Regional security scholar Ian Storey said that if Gazmin was correct, it would mark the biggest violation yet of the 2002 declaration.

“If China starts building at Scarborough, then it is an occupation and, I believe, the most egregious violation yet of the 2002 declaration,” said Storey, who is based at Singapore’s Institute of South East Asian Studies.

“It is a very significant development indeed and one that will certainly add to tensions.”

Speaking at a China-ASEAN trade fair in the southern Chinese city of Nanning, Chinese Premier Li Keqiang said his country was serious about wanting a peaceful resolution to the South China Sea disputes, though signaled it was in no rush to sign a long-mooted accord to replace the DoC.

After years of resisting efforts by ASEAN to start talks on an agreement on maritime rules governing behavior in the region, the so-called Code of Conduct, China has said it would host talks between senior officials this month.

Li said China had always advocated talks on the South China Sea on the basis of “respecting historical reality and international law”.

“The Chinese government is willing and ready to assume a policy of seeking an appropriate resolution through friendly consultations,” Li told the audience, which included Vietnamese Prime Minister Nguyen Tan Dung and Thai Prime Minister Yingluck Shinawatra.

China would “proceed systematically and soundly push forward talks on the Code of Conduct for the South China Sea”, Li said without elaborating in comments aired live on state television.

He also repeated that talks on the dispute should only be carried out between the parties directly concerned, Beijing’s standard line which rejects the involvement of outside parties such as the United States or multilateral forums.

Washington has not taken sides, but Secretary of State John Kerry reiterated in Brunei in July the U.S. strategic interest in freedom of navigation through the busy sea and its desire to see a Code of Conduct signed quickly.

Critics say China is intent on cementing its claims over the sea through its superior and growing naval might, and has little interest in rushing to agree to the Code of Conduct.